The Original Public Meaning Of The Fifth Amendment Applied To Substantive, Prosecutorial Use Of Pre-Miranda Warning Silence

Note — Volume 98, Issue 4

98 Va. L. Rev. 897
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This Note applies the original public meaning of the Fifth Amendment’s self-incrimination clause to silence maintained before Miranda warnings are given. After beginning with a brief defense of originalism applied to pre-Miranda silence, the Note shows how the history of the right, the understanding at the founding, and the underlying justification of individual autonomy support proscribing the use of pre-Miranda silence as evidence of guilt. It then shows that the original understanding fits comfortably within current Supreme Court precedent. Finally, the Note responds to some counterarguments.

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  Volume 98 / Issue 4  

The Law of Nations as Constitutional Law

By Bradford Clark & Anthony Bellia, Jr.
98 Va. L. Rev. 729

The Constitutionality of Federal Jurisdiction-Stripping Legislation and the History of State Judicial Selection and Tenure

By Brian T. Fitzpatrick
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The Original Public Meaning Of The Fifth Amendment Applied To Substantive, Prosecutorial Use Of Pre-Miranda Warning Silence

By Andrew Bentz
98 Va. L. Rev. 897